Citation Nr: 1040121
Decision Date: 10/26/10 Archive Date: 11/01/10
DOCKET NO. 08-06 788A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque,
New Mexico
THE ISSUE
Entitlement to a total disability rating based on individual
unemployability due to service- connected disabilities.
ATTORNEY FOR THE BOARD
E. Pomeranz, Counsel
INTRODUCTION
The Veteran had active military service in the United States Army
from October 1971 to September 1974. He also had active military
service in the United States Navy from August 1978 to November
1986 and from November 1987 to June 1995.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal of a July 2007 rating action by the Department of
Veterans Affairs (VA) Regional Office (RO) located in Phoenix,
Arizona. The Veteran currently resides within the jurisdiction
of the Albuquerque, New Mexico VARO.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran if
further action is required.
REMAND
In June 2009, the Veteran, via his representative, submitted to
the RO a private medical evaluation from A.M., Ph.D., dated in
March 2009, in support of his claim for entitlement to a total
disability rating based on individual unemployability (TDIU) due
to service- connected disabilities. This evidence was forwarded
to the Board in November 2009. Applicable VA regulations require
that pertinent evidence must be referred to the agency of
original jurisdiction (AOJ) for review and preparation of a
supplemental statement of the case (SSOC) unless this procedural
right is waived in writing by the appellant. 38 C.F.R. § 20.1304
(2010). In this regard, the Veteran did not waive his right to
have this additional evidence initially considered by the RO.
Thus, a remand is necessary so that the RO may review this
evidence.
The Board also notes that the evidence of record includes a
Memorandum, dated in August 2007, from Ms. L.R., a VA Vocational
Rehabilitation Counselor. In the Memorandum, Ms. R. stated that
given the Veteran's age, education, previous work experience, and
the severity of his issues, further training would not render him
employable. She further noted that there was no reason to
believe that the Veteran could ever be returned to substantial
competitive employment. In this regard, a review of the March
2008 statement of the case (SOC) and the May 2009 SSOC shows that
the RO did not consider the aforementioned evidence. Thus, upon
remand, the RO must also review this evidence.
In this case, the Veteran maintains that he is unable to work due
to his service-connected disabilities. The Veteran is service-
connected for the following: pulmonary impairment due to oil
smoke (30 percent disabling); left knee replacement (30 percent
disabling); right total knee replacement (30 percent disabling);
peripheral neuropathy of the left lower extremity (20 percent
disabling); status post resection of giant cell tumor of tendon
sheath of the left ankle with degenerative changes (10 percent
disabling); onychomycosis of the right hand, thumb of the left
hand, and 2nd, 3rd, and 4th toes of the right foot (10 percent
disabling); tinea corpus (10 percent disabling); carpal tunnel
syndrome of the right wrist (10 percent disabling); sclerosis of
the right shoulder (noncompensable); and ulceration of the
duodenal bulb (noncompensable). The combined service-connected
disability rating is 90 percent, effective from September 1,
2009.
In this case, the Board recognizes that the Veteran failed to
report to a VA examination that was scheduled in December 2008.
See 38 C.F.R. § 3.655. However, given that this case is being
remanded to the RO for additional development, the Board finds
that a contemporary examination is needed to properly determine
whether the Veteran is unemployable due to all of his service-
connected disabilities. See Friscia v. Brown, 7 Vet. App. 294
(1995).
Accordingly, the case is REMANDED for the following action:
1. The RO must schedule the Veteran for the
appropriate VA examination(s) to determine to
what extent the Veteran's service-connected
disabilities provide limitations on his
ability to obtain employment. The claims
folder and a copy of this remand must be made
available to the examiner for review in
conjunction with the examination(s). All
indicated tests must be conducted. The
examiner must elicit from the Veteran and
record for clinical purposes a full work and
educational history. Based on his/her review
of the case, the examiner must provide an
opinion on the following:
Is it at least as likely as not (50 percent
or greater degree of probability) that the
Veteran's service-connected disabilities
alone preclude him from securing and
following substantially gainful employment
consistent with his education and
occupational experience.
The VA physician is advised that the term
"as likely as not" does not mean within the
realm of possibility. Rather, it means that
the weight of medical evidence both for and
against a conclusion is so evenly divided
that it is medically sound to find in favor
of causation as to find against causation.
More likely and as likely support the claim
of unemployability; less likely weighs
against the claim.
The examiner is requested to provide a
rationale for any opinion provided. If the
examiner is unable to answer any question
presented without resort to speculation, he
or she should so indicate.
2. The RO must then review and re-adjudicate
the issue on appeal. The RO must consider
all of the evidence of record, and any
additional evidence obtained by the RO
pursuant to this remand. Specifically, the
RO must review and re-adjudicate the
Veteran's claim in light of the evidence that
was added to the record since the last SSOC
was issued in May 2009, to include the
private medical evaluation from A.M., Ph.D.,
dated in March 2009. The RO must also review
the Memorandum, dated in August 2007, from
Ms. L.R., a VA Vocational Rehabilitation
Counselor. If the benefit sought on appeal
remains denied, the Veteran and his
representative must be provided with an SSOC.
An appropriate period of time should then be
allowed for a response, before the record is
returned to the Board for further review.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).